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Draft law supports polluter pays principle for waste crime

A draft amendment to the Environmental Permitting (England and Wales) (Amendment) Regulations 2010 could soon allow businesses in England that breach their environmental permits to volunteer enforcement undertakings in place of receiving criminal sanctions.

Drafted as part of a package of work on civil sanctions, the amendment would allow the 90,000 sites covered by environmental permits in England (such as landfill sites and waste transfer stations) the option of offering the Environment Agency (EA) an ‘enforcement undertaking’ to restore and remediate any damage caused if and when they breach their environmental permit (for example, by polluting). If accepted and fulfilled, the business would avoid attracting a criminal record.

It is hoped that the amendment will: ‘free up’ the EA’s time to focus on criminal sanctions for those who ‘wilfully or repeatedly flout the law or harm local communities’; offer restitution for local communities and/or those affected instead of court penalties; and allow businesses that are ‘normally compliant’ with their environmental permit to avoid ‘the stigma of a criminal conviction’ by volunteering actions that could remediate any pollution caused.

‘Giving greater flexibility to regulators in the way they secure compliance’

Speaking in the House of Lords last week, former Resource Minister Lord de Mauley reiterated the words of current Resource Minister Dan Rogerson in the House of Commons last month, and stated: “For some cases, prosecutions and cautions can be heavy-handed and slow. Currently, there is no proportionate alternative for offences under the Environmental Permitting (England and Wales) (Amendment) Regulations 2010.

“The regulations we are considering… will enable the Environment Agency to accept enforcement undertakings for certain offences and facilities where an environmental permit is required. [This will] give greater flexibility to regulators in the way they secure compliance, reserving criminal prosecution for the most serious offences.

“It’s important to confirm that the worst offenders will continue to be prosecuted. Enforcement undertakings will be most appropriate for normally compliant people and businesses as long as they address the causes and effects of their offending. Where they are used they will streamline enforcement, put compliance and restoration first, and encourage dialogue between the EA and businesses.”

Example of the amendment in practice

Again using the same words Rogerson had used in the Commons, de Mauley went on to give an example of how the amendment could work in practice. He stated that if an industrial company with high environmental performance standards “accidentally pollutes a river with sediment run off from an on-site development project”, rather than being subject to prosecution, the company could, in future, offer an enforcement undertaking. That offer might explain how the company would prevent the offence from happening again, “perhaps by changing procedure and also perhaps making a board member responsible for future development projects and environmental performance as a whole”.

He added that the enforcement undertaking would also quantify the environmental harm that had been caused, and propose investment of that value “perhaps to a local environment project or charity that works to improve the river that had been polluted”.

He continued: “[I]f the offender’s compliance history had previously been good, the offence was not foreseeable, and the environment effect was minor, it may be appropriate [for the EA] to accept an enforcement undertaking”.

If formally accepted, it is estimated that the amendment could avoid around 50 prosecutions or formal cautions each year.

The amendments are not expected to make any changes to existing enforcement mechanisms, beyond allowing the EA to accept undertakings from those who voluntarily offer them.

However, where an enforcement undertaking is not complied with, the regulator will be able to prosecute for the original offence.